The B.C. Supreme Court ruled this week on a legal challenge put forward by the British Columbia Civil Liberties Association and the John Howard Society. In his decision, Justice Peter Leask said strict time limits must be placed on solitary confinement – officially referred to as “administrative segregation” – in order to avoid violating the constitutional rights of inmates. The practice creates risks for both the inmates and the general public, Leask found.

“Rather than prepare inmates for their return to the general population, prolonged placements in segregation have the opposite effect of making them more dangerous,” Leask wrote, “both within the institutions’ walls and in the community outside.”

On Wednesday Leask suspended his decision for 12 months to give the federal government time to draft new legislation setting strict time limits on segregation. The government has already introduced a bill that would set a limit of 21 days, with a reduction to 15 days after the new rules have been in place for 18 months, though it has not yet become law.

Saskatchewan Penitentiary affected

Catherine Latimer, inmate advocate and executive director of the John Howard Society of Canada, said the decision’s implications will extend far beyond British Columbia and into Saskatchewan.

The most notable local effects of the decision will be felt at the Saskatchewan Penitentiary, Latimer said, where segregation is still a fairly common, if declining, practice. When the new legislation is passed, Latimer said Correctional Service Canada (CSC) will need to ensure the penitentiary conforms to the new national standards.

CSC publications state administrative segregation can currently be imposed in order to protect the segregated inmate, for an ongoing investigation, or the safety of other inmates, and “may continue until the reasons for the placement have been resolved or the inmate can be transferred.” As of Jan. 1, 2017, 391 inmates were in administrative segregation in Canadian federal institutions, Correctional Investigator Ivan Zinger wrote in his annual report. In 2015-16, there were 479 inmates admitted to segregation in the Saskatchewan Penitentiary.

According to CSC spokesperson Jeff Campbell, the full impact the decision will have in Saskatchewan is still being reviewed.

“While the court found that changes are required to administrative segregation,” Campbell wrote in an email, “the court has allowed the government time to examine the decision and assess its impact.”

“We are currently reviewing the decision and next steps.”

Province reviewing policies

In addition to the federal implications of the decision, Latimer said the province is likely watching the matter closely.

“I would think the provincial correctional authorities will be looking pretty seriously at how the federal practices were found to violate the Charter of Rights and Freedoms,” she said. “The provincial institutions have solitary confinement and administrative segregation as well.”

Latimer said officials with the Saskatchewan Ministry of Justice are likely reading this week’s judgement to determine whether their own policies need to be updated. Long-term solitary confinement would be equally unconstitutional whether it occurred at a federal or provincial institution, she said, so a Saskatchewan court would likely reach the same conclusion as British Columbia’s.

“They would need to be worried if the courts in Canada are looking at certain practices of solitary confinement and finding they violate the constitutional rights of prisoners,” Latimer said.

“Segregation is a status and not a specific location within our correctional facilities,” Busse said in an email to paNOW. “The basis of this practice is the need to maintain the safety and security of the province’s correctional facilities.”

The term “solitary confinement” is not used at provincial facilities, Busse said, as it is not an accurate description.

Better options available

Although long-term segregation is often used to protect inmates who may be vulnerable in the general population, Latimer said there are other population-management strategies that can be employed. Solitary confinement has significant negative effects on prisoners’ mental and physical health, she said, so the creation of special units specifically for vulnerable inmates would be a much more rehabilitative practice.

Latimer said she’s very hopeful that by working with advocacy organizations and other stakeholders, an effective, constitutional solution can be put in place well before the court-imposed deadline passes.

“If we all work collaboratively we can come up with some safe and effective alternatives to prolonged administrative segregation,” she said, “and we could implement those certainly more quickly than the 12-month timeline suggested by the courts.”

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